The Overreach of the E.P.A.: Fact or Fiction?

Earlier this month the House Energy and Commerce Committee passed a bill, the “Energy Tax Prevention Act of 2011,” which, if it becomes law, would effectively halt the Environmental Protection Agency’s proposed program to regulate greenhouse gas emissions. This is one of many attempts in an ongoing campaign by Republicans to limit the power of the EPA to make and enforce regulations related to greenhouse gas emissions. They are attempting this through budgetary control measures as well as by attempting to strip the EPA of its regulatory authority in this area through legislation. There appears to be an intentional effort to cast this as a battle between the legislative and executive branches. However, this is actually a battle royal including all three branches of the federal government, as well as many state, local, and private organizations. It is important to look at the recent history of this fight to truly understand the rhetorical attacks being waged at this point in the battle.

Our story begins with Congress’s entry into the air control business in 1955. This is the year that the “Air Pollution Control Act” was passed, a measure which funded federal research on air pollution. Later in 1963, the Clean Air Act was passed which formally introduced air pollution controls. The Air Quality Act of 1967, and the Clean Air Act of 1970, were further expansions of federal air pollution control. Shortly after the passage of the CAA of 1970, the National Environmental Policy Act of 1971, created the Environmental Protection Agency and the current make-up of air pollution control apparatus was born. Amendments to the CAA in 1977 and later in 1990 served the purpose of further clarifying the regulatory mandate of the EPA. These amendments gave substantially increased authority and responsibility to the federal government for the regulation of air quality and enforcement of compliance with federal standards. The definitions and standards given by the amendments were the result of the work of scientists, environmentalists, and international treaties like the Vienna Convention and the Montreal Protocol over nearly 40 years, to influence Congress that air pollution was a major problem that needed federal attention. [id.] They are also the last congressional action on the Clean Air Act since 1990.

Fast-forward to November 29, 2006. The Environmental Protection Agency has denied a petition, offered by the state of Massachusetts, (along with a diverse group of 12 other states, 4 cities, and research and activist groups, including the Center for Food Safety, Greenpeace, the Sierra Club, Union of Concerned Scientists, and the U.S. Public Interest Research Group) requesting that the EPA regulate motor vehicle emissions in relation to their impact on climate change. Mass., et al. v. EPA, 549 U.S. 497 (2007). The EPA, backed by 10 states and 6 trade associations including the Alliance of Automobile Manufacturers and the Utility Air Regulatory Group, argues that the CAA, “did not authorize the EPA to address global climate change and that, in any event, executive policy specifically addressing global warming warranted the EPA’s refusal to regulate such areas.” The Supreme Court ultimately hears the case of Massachusetts, et al. v. Environmental Protection Agency. In this case Massachusetts argues that: 1. the EPA has the authority to regulate greenhouse gases, according to the CAA; and 2. if it has this authority its reasons for refusing to do so are inconsistent with statute. Id.

In April of 2007, in a 5-4 decision, the Court sided with the plaintiffs and ruled that the EPA could regulate greenhouse gases as “air pollutants.” Id. It further ruled that based on its ability to regulate it can, under the mandate of the statute, “avoid taking further action only if it determines that greenhouse gases do not contribute to climate change, or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” It finally held that the reasons the EPA had given for not conducting the study did not, “amount to a reasoned justification for declining to form a scientific judgment.” Basically, it sent the EPA back to find a justifiable reason for not making the determination, or in the absence of such a reason, to make the determination. The EPA dragged its feet in doing either, and as of PresidentBush’sdeparture from the White House, the EPA had not made a determination, nor had it offered other reasons for not doing so.

After President Obama came into office in 2009, the EPA moved forward with the task given it by the Supreme Court. In December of 2009, the EPA released its finding stating that greenhouse gases do cause or contribute to the endangerment of public health and welfare. Subsequently in April 2010, the EPA and the National Highway Traffic Safety Administration (NHTSA) finalized a joint national program to reduce greenhouse gases and improve fuel economy for cars and trucks.

As a result of these actions, Congressional Republicans have made the argument that the new EPA regulations will“drive up energy prices, depress the economy, and hamper job creation.” They have also argued that the EPA’s actions are an abuse of power and a usurpation of the legislative process. Senate minority leaderMitch McConnell has declared that the EPA’s recent actions are an, “attempt to do through regulation what they [Democrats, Environmentalists, the Obama White House?] couldn’t do through legislation.” The goal of the congressional Republicans seems to be cast the recent actions of the EPA as born of a desire of the Obama White House to circumvent the legislative process, but as we have seen the story is not that simple. The facts paint a picture of the legislative process at work. Unfortunately for Republicans, and many of their allies, the process is not working out in their favor.

Let’s recap: Leading up to 2011, the U.S. Congress between 1955 and 1990 passed a series of legislation that: 1. Made air pollution a federal issue; 2. Created the EPA; 3. Defined the authority and scope of its regulations, and mandated its course of action in certain circumstances. The Supreme Court, having 7 of its nine justices appointed by Republican presidents, ruled in 2007 that the EPA, under the Bush administration, had given no justifiable reasons for refusing to conduct a study of the danger, or lack thereof, posed by greenhouse gases. Further, it ruled that absent this justification the EPA needed to conduct the study. The Bush Administration did not offer any further justification for refusing the study. The Obama Administration, absent that justification, conducted the study. According to the proper process, in 2009, they issued a finding of endangerment. Based on this finding, the EPA was mandated by Congress, to regulate greenhouse gases. In 2010, the EPA finalized a new program to regulate greenhouse gas emissions.

In 2011, the Republican led House and the Senate Republicans are seeking to remove the EPA’s authority to regulate these gases. The President has promised to veto any measure to limit EPA authority. This means that in order to limit EPA’s authority, thereby overruling the Supreme Court’s interpretation of the current legislation, the Republicans would need to acquire a 2/3 majority of both houses to override a presidential veto. Given the highly divided state of the country on this issue this is a highly unlikely scenario. The other option is to get the court to reverse its decision interpreting EPA authority to extend to greenhouse gases. Considering that the two retiring justices who voted in with the majority have been replaced by Obama appointees, this too is a highly unlikely possibility.

Given these facts, it would seem that Senator McConnell’s characterization would be more accurate if it went as follows:

“They [the EPA] are doing through regulation what we [Congress] said they must do through legislation, and what the Supreme Court said they must do through adjudication. We don’t like what they are doing and we don’t have the votes to change the legislation, or the decision, so let’s confuse the issue by accusing them of not following the rules.”

Admittedly, there are plenty of reasonable and principled arguments on both sides of the issue as to whether the impact of the EPA’s regulations will be helpful or harmful to the economy. It is extremely disingenuous however, to attempt to characterize the legitimate exercise of EPA authority to act as somehow extra-legal, or to accuse the EPA, and indirectly the Obama administration, of an attempt to cheat and circumvent the process.